Published: October 15, 2020
By the end of March 2020, many employers and businesses in the U.S. made a sudden transition to work-from-home arrangements for all or the vast majority of their employees, in response to the COVID-19 pandemic. Several months later, some states and localities have eased their mandatory stay-at-home orders, moving into Phase 2 or even Phase 3 of reopening plans. Even so, many organizations are still permitting, encouraging or requiring their employees to continue working from home for the foreseeable future, awaiting the availability of an effective vaccine.
For certification organizations, remote work arrangements pose challenges specific to the credentialing field, in addition to legal and practical issues that other employers are confronting.
Maintaining Security With a Scattered Workforce and Remote Volunteers
For certification organizations that develop and administer secure examinations, maintaining that security is vital to the integrity and validity of examination results. Traditionally, certification examinations are administered under highly secure conditions in test centers. If the exams are administered in paper form, all copies of the exam are collected and either destroyed or returned to restricted locked storage following each administration — and if the exam is computer-based, the test items are retained in secure electronic storage. (Indeed, this expectation is incorporated into the Copyright Office’s definition of a secure test.)
In light of the pandemic, some certification organizations are switching to administering remotely proctored test administrations, which has been permitted as a temporary measure by a May 8, 2020 Interim Rule issued by the Copyright Office, under a limited exception for live remote proctoring approved by the National Commission for Certifying Agencies (NCCA) for its accredited certification programs, and under a similar exception under the ISO/IEC 17024 Standard. These exceptions are limited to remote proctoring that offers assurances of security and integrity substantially equivalent to that provided by in-person proctors.
The focus of these standards has been on the administration of exams to the test-taker — but the security and validity of an examination may also be jeopardized if a certification organization’s employees use non-secure methods to access exam forms or test item banks, or by security breaches in the test item or exam form development stage. Employees who have abruptly transitioned to telework, for example, may connect to the certification organization’s network without securing their home router, or may inadvertently download malware onto the network. The Cybersecurity and Infrastructure Security Agency (CISA) has published teleworking cybersecurity tips and best practices for federal employees and contractors, which certification organizations would be prudent to adapt for their own workforces.
Certification organizations should also have clear guidelines for employees working from home about whether others may access their work computers, and how any papers containing confidential information must be stored and safeguarded. The certification organization’s IT or exam security departments should have individual discussions with each employee who works with sensitive, proprietary information to ensure they have the technological tools, knowledge and equipment needed to work effectively from home and to safeguard test item security.
Similarly, most certification organizations have traditionally held in-person meetings with subject matter experts to develop test items, review exam scores or develop cut score recommendations, in settings in which the certification organization can ensure secure access to that information. If certification organizations are now holding those meetings through virtual interfaces, they should deploy meeting protocols and confidentiality agreements in advance of the meeting. Each subject matter expert should agree to access the virtual interface only through a secure, non-publicly accessible internet connection, and to participate in the meeting in a private location in which discussions cannot be overheard. They should also agree to not make or keep copies of any test items or other confidential information.
Other Legal and Practical Challenges
Like all employers, certification organizations should review their timekeeping practices to ensure that teleworking non-exempt employees are recording all hours worked — even if outside regular business hours — and are paid any required overtime. Employers should also check the legal requirements in their jurisdiction for business expense reimbursements to ensure proper reimbursement of necessary teleworking expenses, especially if the organization is not offering its employees the option to return to the office.
Employees who are working from home may need more flexibility to get their jobs done — or may even need intermittent, reduced schedule or full-time leave from their jobs. With many school systems engaging in remote or hybrid instruction and some child care centers closed, working parents may be unable to commit to completing their work during their regularly scheduled hours or, even with flexible work schedules, may be unable to sustain both their full workloads and their family care and homeschooling obligations. Employees may also have caretaking obligations for parents or other family members. Certification organizations with fewer than 500 employees should ensure that they comply fully with their obligations under the Families First Coronavirus Response Act (FFCRA) and check with legal counsel about any applicable state or local mandates.
To avoid discrimination claims, employers should not assume that any employee will be unable to meet work expectations, but rather should invite all employees to discuss any adjustments or accommodations needed during the pandemic. For example, per EEOC guidance, the Americans with Disabilities Act prohibits employers from excluding an employee from the workplace (or furloughing or firing the employee) solely because the employee has a disability placing them at higher risk of severe COVID-19 complications. Even apart from legal compliance concerns, organizations may need to offer flexibility and understanding that goes beyond statutory mandates in order to retain their employees and support employee morale.
These current work arrangements may end with the pandemic — or may prove so successful that they lead to lasting changes for certification organizations’ workplace practices.